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Project Report on – RIGHTS OF PRISONERS UNDER

ARTICLE 21

Submitted by

Name of the candidate – GURMEHAR SINGH MINHAS


Division-A Roll No. 19010323045

Symbiosis Law School, Hyderabad


Symbiosis International University, PUNE

In
October, 2019

Under the guidance of


Name of guide – MS. RUKMA
SYMBIOSIS LAW SCHOOL, HYDERABAD
SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY), PUNE

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C E R T IF IC AT E

The Project titled “ RIGHTS OF PRISONERS UNDER ARTICLE 21 ” submitted to the


Symbiosis Law School, Hyderabad as part of Internal assessment on Legal Research is based
on my original work carried out under the guidance of MS. RUKMA from________ to
__________. The research work has not been submitted elsewhere for the award of any
degree.
The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate


Date:

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ACKNOWLEDGMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.
I am highly indebted to MS. RUKMA for her guidance and constant supervision as well as
for providing necessary information regarding the project & also for their support in
completing the project.

I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which help me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and people
who have willingly helped me out with their abilities.

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TABLE OF CONTENTS

Content
A) INTRODUCTION
1. ABSTRACT 5-6
2. OBJECTIVE 6
3. STATEMENT OF PROBLEM 6
4. RESEARCH QUESTIONS 6
5. HYPOTHESIS 6-7
6. RESEARCH METHODOLOGY 7
B) MAIN TEXT
1. ARTICLE 21 OF THE INDIAN CONSTITUTION 8-9
2. RIGHTS TO PRISONERS GIVEN UNDER ARTICLE 21
a) RIGHT TO LEGAL AID 10
b) RIGHT TO SPEEDY TRIAL 10-11
c) RIGHT AGAINST SOLITARY CONFINEMNT, HANDCUFFING AND BAR FETTERS AND
PROTECTION FROM TORTURE 11-14
d) RIGHT TO MEET AND CONSULT LAWYERS 14-15
C) CONCLUSION 16
D) SUGGESTIONS 16-17
E) BIBLIOGRAPHY 18

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INTRODUCTION

ABSTRACT

A society that believes in the worth of the individuals can have the quality of its belief judged
by the quality of its prisons. It is the human life that necessitates human rights. Being in a
civilised society organised with law and a system as such, it is essential to ensure for every
citizen a reasonably dignified life. Thus, every right is a human right as that helps a human to
live like a human being. Especially when the principles and objectives of criminology and
penology are acquiring a human face the enforcement of human rights assume a very great
relevance. Simply because a person is under a trial or convicted, his rights cannot be discarded
as a whole.

In the Constitution of India, there is no specific guarantee of Prisoner’s Rights. But there
arecertain rights given under Part-III of the Constitution, which are available to the prisoners
too, because a prisoner remains a person in the prison. A Prisoner isa person who is deprived
of his personal liberty, dueto the conviction of a crime, and imprisonment is the most common
method of punishment provided by all legal systems. Imprisonment makes the prisoner egret
for about what they have done in their past. The judiciary protects the rights of prisoners and
recognizes theirrights. They are protected from torture and solitary confinement. There are
certain statutes in the Constitution which provides that certain rights of the prisoners are
enforced, like, Prisoners Act, 1900; Prisoners (Attendance in Courts) Act, 1955; Prison
Act,1894 etc. There are also Prison and Police Manuals, which have certain rules and
safeguards for the prisoners, and it is an obligation on the prison authorities tofollow these
rules. According to the Universal Declaration of Human Rights, ―All human beings are born
free and equal in dignity and rights. They are endowed with reason and conscience, and should
act towards one other in a spirit of brotherhood1.

The Indian Constitution does not expressly provide any sort of provisions related to the
prisoners’ rights but in T.V. Vatheeswaran VS State of Tamil Nadu case, the court held that

1
UN, Universal Declaration of Human Rights
https://www.un.org/en/universal-declaration-human-rights/

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the Articles 14, 19 and 21 are available to both prisoners as well as freemen. Prisons cannot
infringe our fundamental rights.

Article 14 basically talks about treating everybody equally before the eyes of law.

Article 19 specifies the six kinds of freedom given to all the citizens of the country. Few of
these freedoms cannot be enjoyed by the Prisoners because obvious reasons and due to the
nature of those rights.

Article 21 basically talks about giving to every individual including foreigners and prisoners
Right to Life and Personal Liberty. No one can be deprived of these rights except according to
the procedure established by law.

OBJECTIVE

1. To study the Rights of Prisoners in depth and trace its origin.


2. To study why were these Rights adopted by Indian Constitution.
3. To study how these Rights relate to article 21of the Indian Constitution.

STATEMENT OF PROBLEM

This research is directed on deep understanding the Rights of Prisoners, its origin and
developments, comparison with human rights then understanding how courts have given
decisions to safeguard the rights of the Prisoners.

RESEARCH QUESTIONS

1. What laws does the Indian Constitution give to its prisoners?


2. Whether these laws are being implemented properly?

HYPOTHESIS

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Prisoners rights are enshrined in the Article 21 of the Indian Constitution. These rights are
being violated by the people in authority and now it is the duty of the Judicial system to
safeguard these rights of the prisoners it is performing its duty well.

RESEARCH METHODOLOGY

The research methodology used in this research would be Doctrinal Legal research.

Abstracting ideas from different sources and consolidating them systematically is the key
feature of this type of research. The Latin word ‘doctrina’ refers to knowledge or learning. The
word ‘doctrinal’ suggests a principle/position/body of principles in a field of knowledge.

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MAIN TEXT

ARTICLE 21 OF THE INDIAN CONSTITUTION

Article 21 reads as “No person shall be deprived of his life or personal liberty except
according to a procedure established by law2.” According to Hon’ble Justice Bhagwati, judge
in the supreme court, Article 21 embodies a Constitutional value of Supreme importance in a
democratic society. Hon’ble Justice Iyer, also judge in the Supreme court characterizes
Article 21 as the procedural Magna Carta protective of life and liberty.

This right is said to be the heart of the Indian Constitution and also the most organic and
progressive provision in our living constitution, also said sometimes the foundation of our
laws.

Article 21 secures two rights:

1) Right to Life
2) Right to Personal Liberty

The Article basically deals with the prohibition of the deprivation of rights of an
individual except according to the Procedure Established by Law.
Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4)
of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946 are
the basis on which the Article 21 of the Constitution is based on.
This is the only Right in the Indian Constitution which is not only provided to every
person or citizen of the country but is also equally given to Foreigners. However, the
foreigners are not entitled to the right to settle and reside in India as mentioned in the
Article 19 (1) (e).
This Article emphasis at giving proper facilities a person needs to live a life with full
dignity. As in the case Kharak Singh VS State of Uttar Pradesh3, the Supreme Court gave
the decision that the term “Life” used is meant more than mere animal existence. The
court further went on to say that the inhibition against its deprivation extends to all the
limbs and faculties by which life is enjoyed.

2
INDIA CONST. art. 21
3
Kharak Singh VS State of Uttar Pradesh, AIR 1963 SC 1295 (India)

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Also, in the case of Sunil Batra VS Delhi Administration4, the Supreme Court gave the
approval of the above observation and said that the “Right to Life” included the right to
live a healthy life so to enjoy all facilities of the human body in their prime conditions.

In Maneka Gandhi VS Union of India case5, the Supreme Court gave the decision giving
a new dimension to the Article 21 and held that the right to live is not merely a Physical
right but also includes “Right to live with Dignity.”

RIGHT TO PRISONERS GIVEN UNDER ARTICLE 21

A little less than 200 years ago, the attitude towards Prisons, Prisoners and Punishment was
quite brutal and barbaric. Recognizing a human being as a convicted offender was an idea
that has been accepted after a long struggle with the state.

The Indian sociological and legal system is based on Non-Violence, mutual respect and
human dignity of an individual. If a person commits a crime, it does not mean that the person
ceases to live a life with human dignity. This is similar in reference to the cases mentioned
above which also state whatever happens, an individual should always be given a quality life
which he lives with dignity.

Even the prisoners should be granted human rights because the prison torture is not the last
drug in the justice Pharmacopoeia but a confession of failure to do justice to do justice to a
living man6.

Constitutions Article 21 guarantee’s the right of personal liberty and thereby prohibits any
inhuman, cruel or degrading treatments to any person whether he is a national or foreigner.
Any violation of this right brings the provision of the Article 14 of the constitution which
includes right to equality and equal protection of law.

The Prison Act, 1894 also separately deals with the question of cruelty to prisoners. If any
wrong is committed to the prisoners , the prison administration is responsible for that. Any

4
Sunil Batra VS Delhi Administration, AIR 1978 SC 1675 (India)
5
Maneka Gandhi VS Union of India, AIR 1978 SC 597 (India)
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Legal desire, Rights of prisoners under Indian Law, 15 September 2017

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torture committed by the police authorities on the prisoners draws the attention of both the
Legislature and also of the judiciary.

A) RIGHT TO LEGAL AID

The idea of human rights would become meaningless if a person is not entitled to
have access to legal aid to get justice in case of violation of his right. This is a big
challenge for a country like India due to its massive size and heterogeneity where
more than half of the population lives in villages steeped in poverty, destitution and
illiteracy.
Legal aid is a matter of Constitutional right and not of any charity or benevolence.
The basic idea behind legal aid is that it envisages the machinery of administration of
justice should be easily accessible and should not be out of the reach of those people
who will have to resort to it for the enforcement of their legal rights. It laws the
foundation of the Rule of law.
Judiciary has played the most important role in developing the concept of legal aid in
India. In the case, M.H. Wadanrao Hoskot VS State of Maharashtra7, the court stated
that the right to Legal Aid is one of the major ingredients of a fair procedure.

B) RIGHT TO SPEEDY TRIAL

This right ensures righteous, fair-minded and exemplary procedure. This right is
concerned with the fact that whether the accused is guilty or not, he must get a speedy
trial as much early which can be done.
In the case, Hussainara Khatoon VS State of Bihar8, a shocking case related to the
administration of justice came forward. A high number of men, women and even
children are behind the bars just because of the slow trial process. The offences which
these individuals had committed were quite trivial in nature in which even if they are
proved guilty, they won’t get a punishment for more than a period which may not be

7
M.H. Wadanrao Hoskot VS State of Maharashtra, AIR 1978 SC 1548 (India)
8
Hussainara Khatoon VS State of Bihar, AIR 1979 SC 1369 (India)

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excessive of 2 months at all, perhaps maximum for a year or two. But till the
judgment, these unfortunate forgotten specimens of the society have to stay in the jail
for a period ranging three to ten years, thus, deprived of their freedom.
Even in the case of Mathew Areeparmtil VS State of Bihar9, large population of
people were languishing in the jails without trials for committing petty offences. The
court then issued directions to release those prisoners. Moreover, to that, the court
issued directions to release all the tribal accused’s who were serving imprisonment for
more than 7 years on the execution of a personal bond.

C) RIGHT AGAINST SOLITARY CONFINEMNT, HANDCUFFING AND BAR


FETTERS AND PROTECTION FROM TORTURE

Solitary confinement is a term which in general sense means the separate confinement
of a prisoner, who is rarely allowed to meet any person, that too at the option of the
jail authorities. In simple terms, it means the complete isolation of a prisoner from the
human society10.
Torture is considered by the police and the investigating authorities as a normal
practise to gather information about a crime, the accomplice and to extract confession.
The Police Officers who are expected to be the protectors of the civil liberties are
themselves violating the precious rights of citizens.
An under-trial or any arrested person canned be handcuffed in the absence of any
justifying circumstances. When it is known that the accused is an educated individual,
selflessly devoting his service to public causes, not having any tendency to escape and
tried and convicted for bailable offence, there is no adequate reason for handcuffing
him while taking him from the jail to court.
In the case, Prem Shanker Shukla VS Delhi Administration11, the petitioner was an
under trial prisoner in the Tihar jail. He had to be taken to the magistrate from the jail
repeatedly in connection with certain cases pending against him. The court ordered
the police authorities that the accused should not be handcuffed unless it was
warranted. But the escorts still handcuffed him and in response to this he sent a
telegram to the Supreme Court authorities addressing the same. The court stated on

9
Mathew Areeparmtil VS State of Bihar, AIR 1984 SC 1854 (India)
10
Legal desire, Rights of prisoners under Indian Law, 15 September 2017
11
Prem Shanker Shukla VS Delhi Administration, AIR 1980 SC 1535 (India)

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this that Handcuffing is to hoop and to punish humiliatingly. Under the article 19 of
the constitution, every person is entitled to minimum freedom of movement which
cannot be cut down by the application of handcuffs.
There should be material and sufficiently precise information to satisfy a reasonable
mind that there is a clear and present danger of the prisoner who is being transported
of breaking out of the police control.
In the case, D.K. Basu VS State of West Bengal12, the court while addressing the letter
to the chief justice as a writ petition stated that in almost every state of the country the
frequency of deaths in the police custody are increasing which generally the
newspapers refer to as Lock-up Deaths. Presently, there is no such machinery which
deals efficiently with these kinds of cases.
Custodial deaths are a naked violation of human dignity and degradation which
destroys to a very large extent the individual personally. It is an assault on the human
dignity. Fundamental rights in the Indian Constitution occupy a place of pride. Article
21 of the Indian constitution says that no person shall be deprived of his life or
personal liberty except according to the procedure established by law. Besides Article
21, Article 22 as well guarantees protection against arrest and detention in certain
cases and declares that no person who is arrested shall be detained in custody without
being informed on what ground he is being arrested and shall not be denied the right
to consult a lawyer and defended by the same of his choice.
The court gave certain requirements to be followed in all cases of arrest or detention
till further legal provisions are made in that behalf as preventive measures:
1) The Policemen who is authorized of handling the interrogation of the accused
and to carry out the arrest must bear accurate, visible and clear identification
and name tags with their designation. The particulars of all the police officers
carrying out the arrest must be recorded in a register.
2) The police officials must maintain a memo of the arrestee at the time of arrest.
3) The person who has been arrested holds a right that when he is arrested
anyone one of his family members or close relatives must be informed about
that.
4) The police must inform the next friend or the relative of the arrestee about the
exact time, place of arrest and the venue of custody of the arrestee. If the

12
D.K. Basu VS State of West Bengal, ( 1997) 1 SCC 416 (India)

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arrestee lives outside the district or the town, this information must be
communicated through the Legal Aid Organisation in the District and the
police station of the area concerned telegraphically within a period of 8 to 12
at maximum after the arrest of the arrestee.
5) When the accused is arrested, he must he informed of his right of informing of
his arrest to his family members or close relatives as soon as he is put under
arrest or is detained.
6) At the place of the detention of the arrestee, a diary must be prepared bearing
the entry including the place of detention of the arrestee which shall also
disclose about the next friend of the arrestee who has been informed about the
arrest and the name and designation of the police officials under who’s
custody the arrestee is held.
7) When the accused is detained, he has the option to get himself examined at the
time of arrest. All the major and minor injuries on his body must be recorded
at that time. Both the arrestee and the police officers must sign the “Inspection
Memo” which contains the details of all such injuries after effecting the arrest
and a copy of it must be provided to the arrestee.
8) The accused must have a medical examination after every 2 days while in
custody by a trained doctor under the panel of approved doctors appointed by
Director, Health Services of the concerned state or the Union Territory,
Director , Health Services, who must prepare a panel like this for all Tehsils
and Districts.
9) Photocopies of all the documents mentioned above including memo of arrest
etc. must be sent to the Magistrate for his record.
10) The arrestee can be permitted to meet his lawyer during the period of
interrogation but cannot be present there throughout the interrogation.
11) The police officer affecting the arrest within 12 hours of effecting the arrest
must send all the information regarding the arrestee in the police control room
of the respective District or State Headquarter.

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In the case, Ajab Singh VS State of Uttar Pradesh13, the court stated that it doesn’t
appreciate the death of any person while in judicial custody. After such deaths, not
only the police officers are responsible to the public at large but are also
responsible to the court under who’s orders they hold such custody.

In another case, Arvinder Singh Bagga VS State of Uttar Pradesh14, the court
stated that torture is not only in physical form but can be in the mental form and
psychological form as well and when the mental torture is proceeded from the side
of a person in authority and that too by a police officer, the mental torture caused
is much more graver in nature. This not only shows the upper hand of the police
but also shows how uncivilized their behaviour is. The Hon’ble Supreme Court
gave its discretion to the State of Uttar Pradesh to take action and launch
prosecution against all the police officers involved in the affair and it even
awarded compensation to the aggrieved petitioners.

D) RIGHT TO MEET FRIENDS AND CONSULT LAWYERS

The rights of the prisoners are now being recognized not only to protect them from
any form of physical problems or torture but also to save them from mental torture,
thus, horizon of human rights is expanding. In the case, Sunil Batra VS Delhi
Administration15 which was also mentioned earlier, the Supreme Court stated that the
prisoners hold a right to be visited by their friends and family. The court also
observed that visits by family members and friends are a solace in isolation and only a
dehumanized system can abstain the prisoners to enjoy even that right as well.
In the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
and others16, the Hon’ble Supreme Court stated that the Article 21’s Right to Life and
Liberty includes the right to live with dignity under which a detainee is entitled to
have interviews with family, friends and lawyers without severe restrictions. The
court observed that Personal Liberty includes the right to socialize with members of

13
Ajab Singh VS State of Uttar Pradesh, AIR 1974 SC 1830 (India)
14
Arvinder Singh Bagga VS State of Uttar Pradesh, (1964) 1 SCR 332 (India)
15
Sunil Batra VS Delhi Administration, AIR 1978 SC 1675 (India)
16
F.C. Mullin VS The Administrator, Union Territory of Delhi, AIR 1981 SC 746 (India)

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the family and friends with subject to the prison regulations and further, under Article
14 and Article 21 such prison regulations must be reasonable and non-arbitrary.

CONCLUSION

The precious Human Life is not just an animal existence. All the people inside the prisons
cannot be repudiate the same. Article 21 of the Constitution guarantees to every state of India
these rights and not even the State has the authority to violate that Right. A prisoner, even if
that individual is guilty, does not stop to be a living individual. They also enjoy all the rights
which a person not in the prison enjoys but always under some restrictions.

Just being in prison does not deprive these individuals from their fundamental rights. Even
when lodged in the jail, they continue to enjoy all their Fundamental Rights. Even if an
individual is convicted of a crime and is deprived of his liberty according to the procedure
established by law, prisoners still enjoy the residue of constitutional rights. Supreme Court is
doing its best to provide adequate enjoyment under the fundamental rights to even those who
have been convicted of a crime. However, the real problem remains with the police and the
other Authorities only who need to be trained and oriented in such a way so that they take
Prisoner’s rights seriously.

Therefore, we see that there is no doubt that it is the democratic legality which clearly
distinguishes and defines our period. Liberty and freedom are the basic elements of a
prisoner’ s human right and democracy. In so far as developing countries are talked about, it
has to be observed that they must believe in the democracy and human rights of prisoners.

Therefore, by keeping the Research Questions in mind and the information collected, it can
be concluded that the hypothesis holds true that Fundamental rights of the prisoners are being
violated by the people in authority at a large scale but it can further be seen that the Indian
Judiciary is doing its best to save the interest of these people.

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SUGGESTIONS

There is a well-known saying in law that, justice delayed is justice denied, this means that,
when these prisoners are denied speedy trial, there will also be no procedure, which is
reasonable, fair and just, according to Article-21. Detainees are not prisoners, as they are kept
in prison even though they have not been yet convicted of a crime17. This leads to an increase
in the number of inmates of the prison. Also, the torture by the authorities which the prisoners
have to bear may make them hardened criminals.

 New rules and regulations are required to function the prisoner’s administration in
a proper manner. The prison authorities must make sure that, the prison regulation
is maintained without injustice and which is not unreasonable.

 It is a common belief amongst the masses that after a prisoner is released from the
jail, he will lead a good life after that, but most often it is not the case. The social
stigma will always continue to be with them, as the society will still consider them
to be a prisoner, even if now he has been released. There are many correctional and
rehabilitative techniques available for the prisoners. Prisoners must be trained in
some activities so that they can lead a respected life after they get out of the jail.

 The anti-social outlook of these prisoners should be changed so that when they are
out, they have a different perspective otherwise they continue to be a nuisance in
the society and do not change.

 Infliction of Custodial violence is illegal as well as unconstitutional, but even then,


itis still in practice. Sometimes it forces these people to become hardened criminals
This practice is a violation of the Human Rights of the prisoners and should be
abolished as soon as possible.

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Nidhi Beniwal, Role of judiciary in protecting the rights of prisoners

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 Even though there are a number of articles in constitution and many sections in the
Criminal Procedure Code, 1973, Indian Penal Code, 1860 which safeguards the
interest of the prisoners, the question arises that whether there is any proper
implementation, of these laws. Even today, we find many cases of torturing to death
in the police stations, infliction of custodial violence upon the prisoners. These
articles and section must be taken a note and should be implemented so that it helps
these prisoners and makes the conditions of these jails better.

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BIBLIOGRAPHY

A) ARTICLES OF THE CONSTITUTION REFFERED


1. INDIA CONST. art. 21

B) CASES REFFERED
1. Arvinder Singh Bagga VS State of Uttar Pradesh, (1964) 1 SCR 332 (India)
2. Sunil Batra VS Delhi Administration, AIR 1978 SC 1675 (India)
3. F.C. Mullin VS The Administrator, Union Territory of Delhi, AIR 1981 SC 746
(India)
4. Ajab Singh VS State of Uttar Pradesh, AIR 1974 SC 1830 (India)
5. D.K. Basu VS State of West Bengal, ( 1997) 1 SCC 416 (India)
6. Mathew Areeparmtil VS State of Bihar, AIR 1984 SC 1854 (India)
7. Prem Shanker Shukla VS Delhi Administration, AIR 1980 SC 1535 (India)
8. Maneka Gandhi VS Union of India, AIR 1978 SC 597 (India)
9. Kharak Singh VS State of Uttar Pradesh, AIR 1963 SC 1295 (India)

C) WEBLIOGRAPHY
1. Nidhi Beniwal, Role of judiciary in protecting the rights of prisoners
2. Legal desire, Rights of prisoners under Indian Law, 15 September 2017

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